S.P. Mohapatra, J.
1. This is plaintiffs second appeal against the judgment and decree dated 19-10-1955 of Sri L. Panda Additional District Judge of Berhampur, reversing the decision of the Munsif of Aska, arising out of a suit for declaration of title and recovery of possession of eight acres and fifty cents of land as described in the schedule attached to the plaint on ejectment of the defendants therefrom. The plaintiffs case is that the plaintiffs daughter Tasoda was blind and that she had no means of livelihood.
The plaintiff, therefore, by way of making provisions for her maintenance, executed Ex. 1, a deed of gift ,on 24th June 1949, which is described as 'NIRUPANAPATRA' Jasoda died in July 1951. The first defendant is the husband and the second defendant is the son of Jasoda. The third defendant is a transferee in respect of a portion of the disputed land from defendants 1 and 2.
The plaintiff has brought this action on 4-9-1952 for the aforesaid reliefs on the basis of the position that the deed executed by him in favour of Jasoda on 24-6-1949 was a grant in respect ' of a Me estate which was to enure during the lifetime of Jasoda and on the death of Tasoda the property in suit has reverted to the plaintiff; and as such the plaintiff is entitled to the reliefs claimed.
2. The defence, on the contrary, is that the deed Ex. 1 dated 24-6-1949 was a deed of gift in respect of the absolute interest in the property and that on the basis of the deed Ex. 1 Jasoda became the full and absolute owner in respect of the property which was the subject matter of the deed. The plaintiff by virtue of the aforesaid deed having completely extinguished all his right, title and interest absolutely cannot claim recovery of possession on a declaration of title to the property in suit. It was further contended that defendant No. 2 was adopted by the plaintiff.
3. The learned trial Court found that there was no evidence that defendant No. 2 was ever adopted by the plaintiff. He, therefore, decided the issue of adoption against the defendants. On the main question of construction of the deed Ex. he came to the conclusion that it was merely a grant bf a life estate which was to enure during the life-time of Jasoda and on the death of Jasoda the plaintiff was entitled to the property which was die subject-matter of the deed.
4. The learned lower appellate, Court, however, left the question of adoption open as he found that it was unnecessary for the determination of thesuit and reversed the finding of the trial Court in construing the document. According to the lower appellate Court, the document is an absolute grant making Jasoda the full owner in respect of the property in dispute.
5. J will take up the main and the more important question involved in the present appeal, that is, whether Ex. 1 is a document of absolute grant or a deed in respect of a life interest so as to enure during the lifetime of Jasoda only. It will be pertinent, before discussing the matter any further, to quote the important part of the document which appears in the judgment of the lower appellate Court.
The document is in Oriya and the learned lower appellate Court has given a translation of it in his judgment which runs as follows:
'The land described in para 3 of the document is my self-acquired property and I am enjoying it with absolute rights without any disputes. None else has got any right or title or claim to this land. You are my daughter. You have no properties for your maintenance and you are blind.
For your maintenance, there is great need and so for your maintenance, you are depending on me. For your maintenance I am giving (Pradana) the para 3 scheduled lands worth Rs. 1500/- and I have put you in possession of the lands and have divested myself of my rights from the lands.
From today this land has become yours. You will keep this land in your possession and from out of its income, you will pay the Government revenue and with the balance usufruct you will maintain yourself and if necessary you can sell and mortgage or transfer the land to meet your maintenance and you can do whatever you like regarding the land. Regarding this land at any time in future, neither I nor my heirs and successors can make any claim against you regarding this land and they shall have no rights to do so. I am fully agreeable to the above terms.'
6. It is now well settled beyond all controversies that simply because a grant is in favour of a Hindu female, there is no presumption that it is in respect of a life estate. It is further well-established that merely because a document recites the purpose to be one for maintenance, this cannot be the decisive factor to constitute the document as a life grant, if the words 'disposing o the property' clearly indicate that it is in respect of the absolute interest of the donor. The fundamental rule in construing a document is to construe it as a whole in order to reach the intention of the donor.
The intention must be gathered from the words used in the document; if they are unambiguous, the surrounding circumstances are to be considered only for the purpose of finding out the intended meaning of the words which have actually been employed. Speaking in the language of a very great and eminent Judge of India who was a member of the Judicial Committee in the year 1930, the Court is to place himself in the armchair of the executant of the document in order to come to the conclusion about the intention of the donor or the testator, as the case may be.
7. The position has been elaborately clarified and set at rest by a decision of the Supreme Court reported in Ram Gopal v. Nanda Lal, AIR 1951' SC 139 (A). Mr. Ramdas, appearing on behalf of the respondents, however, very strongly relies upon this decision of the Supreme Court to press his point that the document in question must be construed as one of absolute grant making the daughter Jasoda the full owner of the property ta suit. The decision is absolutely binding on us and entitled to the highest respect.
But with greatest respect I must observe that the present case, on account of remarkable pointsof difference appearing in the two documents, that is one before their Lordships of the Supreme Court and the other before me, cannot be governed by the decision of their Lordships of the Supreme Court. It is to be observed that their Lordships laid great emphasis upon two features appearing in the document before their Lordships which was termed as 'Tamaliknama' which means a document' by which 'Maliki' or ownership rights are transferred and the document expressly says that the grantee has been made a 'Malik' or full owner.
Their Lordships, while giving the interpretation of the word 'Malik' used in that document, quoted a passage from the Privy Council decision: Sashiman v. Shib Narain, 49 Ind App 25 at p. 35:(AIR 1922 PC 63 at p. 68) (B), running to theeffect:
'As descriptive of the position which a deviseeor a donee is intended to hold, has been held apt to describe an owner possessed of full proprietaryrights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred.'
In my opinion, therefore, the decisive features, appearing in the document before their Lordships, were the description of the document as Tamalik-nama and further that the document expressly recited that the grantee had been made a Malik, that is, absolute and full owner, on the basis of the document. If that is the position, it is absolutelyclear, that the mere fact that it is in favour of a Hindu female or that there is no further recital in the document that the property will go down fromgeneration to generation, does not really restrict the transfer of the absolute ownership. I will justquote paragraph 11 of the report to indicate what exactly was the decisive factor on which the conciusion of their Lordships of the Supreme Court depended:
'The question before us, therefore, narrowsdown to this as to whether in the present case there is anything in the context of these two connected instruments or in the surrounding circumstances to cut down the full proprietary rights thatthe word 'Malik' ordinarily imports.'
Finding that there was no such restriction in the recitals, interpretation of the word 'Malik' prevailed to lead their Lordships to conclude that it was a case of transfer of full ownership or proprietary right. As I have already mentioned, we have to construe the document as a whole. A single sentence from here and there cannot be taken out of the context in order to determine the nature of the transaction unless some words are absolutely decisive one way or the other.
It is very significant to remark that in the document before us there is not only the absence of such a clause that the property will go down by way of inheritance from generation to generation to the heirs of Jasoda, but there is the conspicuous absence of the clause making the donee as the , 'Malik' in respect of the suit property. The description of the present document is also 'Nirupanapatra'. that is, deed of settlement, and having regard to the meaning of such a phrase in the locality from which the document is emerging, it can not be said that it conveyed the meaning 'transference of absolute ownership.'
8. The second feature that appears to be weighty is that not only the document recites thatit is for the maintenance of the donee merely indicative of the purpose or motive of the donor, but the expression 'pratiposhana' that is, 'maintenance' appears 'quite a number of times within the body of this short document. It appears to be the dominating factor of the entire document indicative of the intention of the donor that it is a mere life grant.
It begins reciting 'you have no property for your maintenance, moreover you are blind and as such you are suffering greatly for making the two ends of your life meet and for maintaining yourself.' It is not a case where there is merely an absence of clause giving the donee the right o complete power of disposition.
But there is a definite clause limiting the power of disposition of the donee to the effect that 'if there be necessity, you can sell, mortgage or transfer the property for maintaining yourself.' This is in accord with the power of disposition of a Hindu widow having only a life estate. Towards the last part of the document there is a clause that the donor and Ms heirs cannot lay any claim as against the donee. But there remains the conspicuous absence of the clause that the donor or his heirs cannot lay any claim in respect of the property not only as against the donee but as against her heirs.
I will mention here that in this part of the country in documents conveying absolute interests of full ownership, there is invariably and always a clause that the donee or the purchaser or the legatee, as the case may be, will be entitled not only to be the owner of the property but will enjoy the property from generation to generation till Sun and Moon shine.
The absence of such a clause in a document in this part of the country has, to some extent, weighed with me to come to my conclusion when 1 consider the other features also arising in the document taken as a whole.
9. There is yet another feature which is, to some extent, indicative of the intention of the donor. The document recites that from out of the usufruct of the land, the rent due to the Government must be paid first and that you are to maintain yourself from out of the balance of the usufruct. Mr. Eamdas has laid much stress upon the clause 'you may do whatever you like' mentioned in the document.
This clause should not be taken out of the context. I should quote the entire sentence in Oriya in order to understand the true implication of this clause: (Sentence in Oriya omitted). That is to say, if necessity arises, you may sell, mortgage or transfer the property for maintaining yourself and use the money in whichever way you like. This is subject to the clause 'Abashyakanele', that is, if there be necessity for transfer, mortgage or sale.
The main governing clause is presence of necessity which empowers the donee to transfer which is consistent only with the conception of Hindu female's right.
10. Mr. Ramdas further relies upon another clause mat 'after giving you possession, I cease to have interest and the land belongs to you.' Read with other context and after considering the features as I have already discussed, this clause is not at all inconsistent with the position that it is only a deed in respect of life estate.
11. Another decision of the Supreme Court has been relied upon by Mr. Ramdas. The case is reported in Nathoo Lal v. Durga Prasad, AIR 1954 SC 355 (C). The property in dispute there originally belonged to one Ramachandra who died soilless in 1903. He was survived by his mother Sheokori, his widow Mst. Badni and his two daughters, Bhuri and Laxmi. He made an oral Will under which he bequeathed the property in dispute to his daughter Laxmi.
On 6-9-1906 Mst. Sheokori and Mst. Badni purporting to act in accordance with the directions of the oral Will, executed and registered a deed of gift of the property in favour of Mst. Laxmil The gift deed contained the following recitals:
'These houses are made a gift to you according to the will of your father Ramachandra .....In this way, these houses belonging to us were purchased by your father Ramachandra and he in his last days having made a gift of these houses to you, ma.de, a will to us that he had made a gift of that house to his daughter Laxmi and directed us to get the gift deed registered in her name. He further said that it we or our relations, kinsien, creditors do raise any dispute with her he would 'Deman gir hoonga' catch hold of him by his garments. According to his aforesaid will, we have got this gift deed executed in your favour, while in best of our senses and in discharge of our sacred duty enjoined by Dharma. No other person except you has got any claim over the house.
You deal with your house in any way you like. If anybody takes back the land gifted by himself or his ancestors, he will live in hell as longas the sun and moon shine.'
The recital indicates that the document before their Lordships was entirely different from the document which is to be construed in the instant case. There was an unconditional clause in the document that Laxmi was entitled to deal with the house in any manner she liked. The deed of gift was executed exactly in accordance with the wishes of the testator and the deed of gift conveyed the intention.
There is another important clause which is of a decisive nature; 'if anybody takes back the land gifted by himself or his ancestors he will live in tell as long as the sun and moon shine.' Their Lordships have further reiterated the principles laid lown in the earlier decision of AIR 1951 SC 139 (A).
12. In my opinion, the position is also equally well settled that even though the principles of guidance in construing documents have been laid down from time to time by very high authorities, the document must be construed as a whole and that each document is to be construed on the peculiar recitals appearing in the document, of course bearing in mind the fundamental principles of guidance laid down from time to time.
13. In conclusion, I feel confident to construe the document in question as one to enure during the lifetime of Jasoda and on the death of Jasoda the plaintiff becomes entitled to the property in suit and is therefore entitled to the reliefs claimed.
14. The learned lower appellate Court has kept the question of adoption open as it is not material for deciding the case. In a suit for ejectment against defendant No. 2, who alleges himself to be the adopted son of the plaintiff himself, it is necessary to determine whether defendant No. 2 is the adopted son of the plaintiff. The learned trial Court had decided the issue on the observation that there was no evidence of adoption. As such the defence allegation of adoption remains unestablished. In my opinion, the judgment of the trial Court is correct.
15. In the result, the plaintiff's appeal isallowed and the suit for declaration of title and recovery of possession in respect of the disputed property described in the plaint schedule is decreedwith costs throughout. The plaintiff is entitled torecover possession in executing the decree in thesuit if he is not given possession amicably by thedefendants.